Amidst the COVID-19 pandemic, it is becoming increasingly hard to see where the balance of harm lies between the risk of exposing care home residents to a life-threatening virus and compromising their most basic quality of life. The Court of Protection made that point in coming to the aid of a man whose contact with his beloved wife was restricted to conversations through a barely ajar window.

The 58-year-old woman's relationship with her husband had endured for 40 years. A music lover who was extremely well travelled, she enjoyed life to the full, contributed to her community and had many friends. After suffering a brain haemorrhage followed by a stroke, however, she was confined to a rehabilitation unit when lockdown was announced. She had subsequently been moved to a care home.

Deeply anxious about the impact of isolation on her mental health, her husband was gladiatorial on her behalf in seeking to maximise contact between them. Restrictions in force at the care home, however, meant that he had to brave the winter elements to speak to her through an open window. Contact had been further compromised whilst she was in quarantine on first arriving at the home and after she contracted the virus, from which she thankfully made a good recovery.

The husband challenged a standard authorisation which had been granted to a local authority and which sanctioned deprivation of his wife's liberty and her confinement in residential care. Ruling on the matter, the Court noted that the pandemic had led to unparalleled restrictions being placed on personal freedom. The health emergency meant that individual needs sometimes had to be displaced by the even greater need to protect the wider public.

However, the state's obligation to protect individual rights, particularly those of the vulnerable and mentally incapacitated, was if anything enhanced during the crisis. It was wrong to regard care home residents as a homogenous group and the character, personality and needs of each individual had to be considered.

Noting promising news concerning the likely effectiveness and availability of COVID-19 vaccines, the Court expressed the view that care homes should place themselves in the vanguard of exploiting any opportunity to promote contact between residents and their loved ones. Given that, for many in the care system, time is simply not on their side, the Court urged care homes not to lag behind and to take their position on the front line.

The Court authorised investigations to be conducted that would produce a clearer picture of the contact options open to the man and his wife. The results of those investigations would be considered at a further hearing. In the interim, the Court urged the care home's management – who had exhibited a cooperative spirit throughout – to facilitate window contact between the couple on a daily basis.

For help or advice on this or other private client matters, please speak to Tracy Creed t.creed@sydneymitchell.co.uk or a member of the private client team on 0808 166 8860.

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